Filed: Jan. 25, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-25-2006 Martirosov v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2092 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Martirosov v. Atty Gen USA" (2006). 2006 Decisions. Paper 1717. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1717 This decision is brought to you for free and open access by the O
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-25-2006 Martirosov v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2092 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Martirosov v. Atty Gen USA" (2006). 2006 Decisions. Paper 1717. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1717 This decision is brought to you for free and open access by the Op..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-25-2006
Martirosov v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2092
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Martirosov v. Atty Gen USA" (2006). 2006 Decisions. Paper 1717.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1717
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2092
KAREN MARTIROSOV,
Petitioner
v.
*ALBERTO R. GONZALES, Attorney General of the United States,
Respondent
*Substituted pursuant to Rule 43c, F.R.A.P.
On Appeal from an Order entered by
The Board of Immigration Appeals
No. A95-462-706
Submitted Under Third Circuit LAR 34.1(a)
September 30, 2005
Before: ALITO and AMBRO, Circuit Judges,
and RESTANI,** Chief Judge
(Opinion filed January 25, 2006 )
OPINION
** Honorable Jane A. Restani, Chief Judge, United States Court of International
Trade, sitting by designation.
AMBRO, Circuit Judge
Karen Martirosov petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming without opinion the denial by an immigration judge (“IJ”) of
Martirosov’s application for asylum and withholding of removal, and his request for
protection under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). The IJ concluded that
Martirosov had not sustained his burden of proving past persecution or a well-founded
fear of future persecution as required by the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1101(a)(42)(A), or torture as defined in the CAT. For the reasons that follow,
we deny the petition.
I. Facts and Procedural History
Because we write for the parties, we only briefly recount the relevant facts.
Martirosov, in his mid-30s, is from Azerbaijan and is currently a citizen of Ukraine. He is
ethnically Armenian and his wife, whom he married in 2000, is half Armenian and half
Azerbaijani. Martirosov entered the United States with a non-immigrant visa on May 15,
2001, which he overstayed. In May 2002 he filed with the INS an application for asylum,
withholding of removal, and protection under the CAT. He amended this application in
January 2003 to include claims of persecution based on national origin and membership
in a particular social group.
2
According to Martirosov’s amended asylum application, he and his family left
Azerbaijan in 1989 and entered Ukraine as refugees. They settled in the eastern city of
Donetsk, which has a large Armenian population. He recounts numerous alleged acts of
discrimination, harassment, and violence directed at him and his family in Ukraine.
Martirosov states that Ukrainians used ethnic slurs to refer to him and his family, and that
his father and brother were beaten in 1992. His brother died in 1996 from a blood clot,
which Martirosov attributes to this beating. He also alleges that he was repeatedly
harassed by the police and taken into custody “at least 27 times,” during which the police
would beat him, deny him food, water, and the use of a toilet, and extort money from his
family to secure his release. They would then, according to Martirosov, force him to sign
a form stating that he had been treated humanely and had no complaints.
In 1998 Martirosov and his fiancée opened a bakery in Donetsk. He alleges he
was forced to pay a higher licensing fee than was normally charged in order to open this
business, which he attributes to his ethnicity. He also states that his business was
vandalized “several times” and anti-Armenian graffiti was painted on the walls. He
married his fiancée in 2000, and shortly thereafter she was detained by police who,
according to Martirosov, attempted to rape her. Throughout these incidents, Martirosov
states he did not complain to the authorities or seek help because “[w]e knew that if
someone of Caucasian origin filed a complaint against the militia the repercussions were
severe — such person would be severely beaten up and could be charged with a serious
3
crime on the basis of false accusations.” He further alleges receiving numerous
threatening telephone calls and being visited by “one huge Ukrainian” in November 2000
who demanded that he abandon his business and threatened to kill Martirosov’s child if
he did not comply. (Martirosov had no children at that time.)
On May 15, 2001, Martirosov came to the United States, ostensibly to purchase
baking equipment for use in his business. Shortly after his arrival, he alleges that he
received a letter from his wife, who was by then pregnant, stating that intruders had
broken into the bakery, vandalized the premises, and beaten her, as a result of which she
miscarried. Martirosov states that he told his wife to sell the business. When she was
unable to find a buyer, he alleges that his wife simply abandoned the property. He did not
return to Ukraine and sought asylum in the United States.
At his hearing before the IJ, Martirosov’s testimony was generally consistent with
the allegations contained in his amended asylum application. In addition, he testified he
was forced to pay bribes to numerous city officials to keep his business open, and
clarified that his bakery was only vandalized twice. He also testified that the “huge
Ukranian” who threatened him did so on two occasions, and both times the man
demanded $500, which Martirosov paid. The IJ inquired about the whereabouts of the
letter in which Martirosov’s wife told him about the miscarriage, and Martirosov’s
counsel stated that he did not have it but assumed that the judge had been provided with a
copy because the letter had been submitted to the INS. The judge informed counsel that
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this was an unwarranted assumption, but counsel did not offer to provide the court with a
copy of the letter.
Following this hearing, the IJ rendered an oral decision denying Martirosov’s
application for asylum and withholding of removal, and his request for protection under
the CAT, but granting him voluntary departure. The IJ found that some of Martirosov’s
testimony relating to discrimination and harassment by Ukrainian authorities was credible
but that this conduct did not rise to the level of persecution. Moreover, the IJ concluded
that Martirosov did not establish that the Ukrainian government was unwilling or unable
to protect him from crimes, and found that his testimony regarding the vandalism of his
business and subsequent extortion was not credible, largely because “none of those
problems [is] documented in any way [because Martirosov] has not provided any type of
corroboration for this alleged extortion attempt by this individual or even the instances of
vandals hurting the respondent’s store.” The IJ also questioned Martirosov’s testimony
regarding the beating of his wife and her subsequent miscarriage, noting that Martirosov
did not provide the letter to the court and “question[ing] [Martirosov’s] contention that if
his wife had suffered this type of assault [he] would then remain in the United States for
another year living with a friend trying to figure out what to do.” The IJ further noted that
the facts alleged by Martirosov, even including those that were not credible, did not rise
to the level of persecution, nor did they rise to the level of torture.
5
Martirosov appealed to the BIA, which summarily affirmed the immigration judge
without opinion on March 23, 2004. He then timely petitioned for review to our Court.
II. Standard of Review
Because the BIA summarily affirmed the IJ’s decision without opinion and
adopted that decision as the final agency action, we review the IJ’s decision directly. Gao
v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We review the IJ’s factual findings,
including his determination of whether Martirosov was subject to persecution or has a
well-founded fear of persecution, under a substantial evidence standard. Shardar v.
Ashcroft,
382 F.3d 318, 323 (3d Cir. 2004). The same standard applies to the IJ’s
credibility determinations. See Cao v. Att’y Gen. of U.S.,
407 F.3d 146, 152 (3d Cir.
2005) (“The credibility determination, like all IJ factual findings, is subject to substantial
evidence review.”). In conducting this analysis we consider the record as a whole and
shall reverse only if “‘[a] reasonable adjudicator would be compelled to conclude to the
contrary.’”
Shardar, 382 F.3d at 323 (quoting 8 U.S.C. § 1252(b)(4)(B)).
III. Analysis
The Government maintains, first, that we need not consider Martirosov’s claim
that the IJ erred in faulting him for not providing corroborating evidence. In the
Government’s view, the IJ’s decision rested on the conclusion that, accepting
Martirosov’s allegations as true even without corroboration, the adverse treatment he
suffered did not rise to the level of persecution. Martirosov has not challenged this
6
decision and therefore, according to the Government, any hypothetical corroboration error
would be rendered harmless because an independent ground of decision remains
unchallenged. Second, the Government claims we cannot review Martirosov’s argument
that he established a “pattern and practice” of persecution against Armenians in Ukraine
because he did not appeal this issue to the BIA and therefore has not exhausted his
administrative remedies as required by 8 U.S.C. § 1252(d)(1).
We agree with the Government on both points. In his appeal to the BIA,
Martirosov alleged error on four grounds: (1) the IJ’s credibility determinations were not
supported by substantial evidence; (2) the IJ erred in determining that the lack of
corroboration justified adverse credibility findings; (3) the IJ erred in concluding that the
adverse treatment to which Martirosov credibly testified did not amount to persecution;
and (4) the IJ based his evidentiary findings on inappropriate speculation and conjecture.
Martirosov’s appeal to the BIA did not allege any error related to the IJ’s failure to find
that background conditions in Ukraine established a pattern and practice of persecution
against Armenians. He has therefore not exhausted his administrative remedies as
required by § 1252(d)(1), and we are consequently without jurisdiction to hear his appeal
on this ground. See, e.g., Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
Likewise, we agree with the Government that the IJ’s finding that Martirosov’s
testimony, including the portions that the IJ found not credible, did not amount to
persecution obviates any need for us to consider the corroboration issue. Martirosov has
7
not petitioned for review of the IJ’s determination that, even accepting all of his
testimony as true, he did not prove that he suffered or had a well-founded fear of
persecution as we have defined the term. See Li v. Att’y Gen of U.S., 400 F.3d 157, 167
(3d Cir. 2005) (defining persecution as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom” (internal
citation and quotation marks omitted)). His failure to petition for review on this ground
means the issue is waived. See Singh v. Gonzales,
406 F.3d 191, 196 n.5 (3d Cir. 2005).
Therefore, even assuming Martirosov is correct that the IJ’s corroboration requirements
constituted error, that error is harmless because, even accepting all of Martirosov’s
testimony as true and credible, the IJ found that he was not persecuted and did not have
reason to fear persecution. Martirosov has essentially conceded this finding by not
challenging it on appeal, and we are therefore constrained to deny his petition and affirm
the BIA’s decision.
* * *
For the foregoing reasons, we deny the petition for review.
8
